Jonathan Mitchell is too busy for court deadlines, but still has time to file new lawsuits
The lawyer behind Texas’s S.B. 8 has a lot more — maybe too much — on his plate these days. Also: The story of the "anonymous" donor in Llano County.
Jonathan Mitchell is so busy trying to stop people from living their lives that he hardly has time to try to stop people from living their lives.
The Texas lawyer behind S.B. 8, the vigilante six-week abortion ban, is now behind much more. But, because of all of the more that he is behind, Mitchell — the former Texas solicitor general — keeps having to ask judges for more time to finish his work. Twice already this month.
First, he was too busy to file a brief on time in the Western District of Texas as part of his effort to ignore the First Amendment and help Llano County take books off the public library’s shelves “because of their viewpoint or content,” as a judge found, including one about the history of the Ku Klux Klan that was a finalist for the American Library Association’s 2011 Excellence in Nonfiction for Young Adults award.
The defendants are requesting this additional time because their lead counsel, Jonathan F. Mitchell, has an exceptionally busy schedule this week that will make it difficult, if not impossible, for him to complete the response by Friday, April 7.
The plaintiffs challenging the library’s actions pushed back, and Mitchell was quite snide in his request for an extension:
The extension was granted.
OK, the “anonymous” donor story.
On June 15, 2022, Mitchell joined up as a lawyer defending Llano County in the case, which had been filed a couple months earlier. A month later, the director of the library filed a declaration in the case stating that a “donor who wishes to remain anonymous” would donate the removed books so that they could be available through the library’s “in-house checkout” — which would mean the removed books wouldn’t be placed back on the shelves, but would be available if someone requested them.
It was a clear effort to try to make the defendants not look so bad.
Mitchell himself referenced the library director’s declaration — and the “donor” — in the county’s brief opposing a preliminary injunction, as part of their argument for why the court should not issue an injunction in the case.1
The brief, signed by Mitchell, then stated in its next line: “So the plaintiffs not being ‘denied their right to access’ these books, as they assert throughout their brief.”
In the time since — surprise! — the parties have learned that Jonathan Mitchell is the “anonymous” donor.
Mitchell is currently trying to hide behind attorney-client privilege to avoid answering questions about this attempt to change the dynamics of the litigation. From the challengers’ filing this past week trying to force his testimony:
![Plaintiffs, by and through their undersigned counsel, hereby move to compel Defendants to produce non-party and Defendants’ counsel Jonathan Mitchell for a second deposition because he refused to answer questions during his first deposition based on improper claims of attorneyclient privilege. Plaintiffs sought to question Mr. Mitchell concerning his admitted “donation” of certain books to the Llano County Library, which comprise a secret repository of copies of books removed from the Library’s shelves (the “Banned Books”), referred to as the “in-house checkout system.” The existence of and circumstances surrounding the secret library are highly relevant to issues Defendants have raised in this case: for example, Defendants argue that the purported availability of the Banned Books through the in-house checkout system “eliminate[s] any possibility of ‘irreparable harm’ or violation of the plaintiffs’ First Amendment rights[.]” (ECF No. 117 at 5.) In so doing, Defendants placed the donation and Mr. Mitchell’s reasons for donating the books in issue, and waived attorney-client privilege as to communications concerning the donation. Mr. Mitchell should not be permitted to refuse to testify regarding these matters when Defendants have already waived the privilege he asserted.](https://substackcdn.com/image/fetch/$s_!yTUA!,f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2F0e6a6588-cb28-4d18-8643-6a2d4febbb75_1302x1094.png "Plaintiffs, by and through their undersigned counsel, hereby move to compel Defendants to produce non-party and Defendants’ counsel Jonathan Mitchell for a second deposition because he refused to answer questions during his first deposition based on improper claims of attorneyclient privilege. Plaintiffs sought to question Mr. Mitchell concerning his admitted “donation” of certain books to the Llano County Library, which comprise a secret repository of copies of books removed from the Library’s shelves (the “Banned Books”), referred to as the “in-house checkout system.” The existence of and circumstances surrounding the secret library are highly relevant to issues Defendants have raised in this case: for example, Defendants argue that the purported availability of the Banned Books through the in-house checkout system “eliminate[s] any possibility of ‘irreparable harm’ or violation of the plaintiffs’ First Amendment rights[.]” (ECF No. 117 at 5.) In so doing, Defendants placed the donation and Mr. Mitchell’s reasons for donating the books in issue, and waived attorney-client privilege as to communications concerning the donation. Mr. Mitchell should not be permitted to refuse to testify regarding these matters when Defendants have already waived the privilege he asserted.")
But, enough of that. (For now.)
Back to Mitchell not having time for his lawyering.
On Monday, Mitchell told another court he was too busy to file a brief on time, this time in the Northern District of Texas as part of his effort to end the Affordable Care Act’s preventative care coverage requirements and use religious protections to gut requirements that companies provide PrEP coverage and contraceptive care within their health insurance plans.
The plaintiffs are requesting this extension because their lead counsel, Jonathan F. Mitchell, has been traveling each of the last four days and has had briefing deadlines and responsibilities to his clients in other matters that he has been unable to move.
He (and lawyer Gene Hamilton) continued:
Missing from that list of what was keeping Mitchell so busy, though, was the fact that, in the midst of this, Mitchell was filing a new lawsuit.
As Drexel University Kline School of Law professor David Cohen, who pointed it out to me on Twitter, put it, “He failed to mention to the court” that he was filing a new lawsuit — and in New Mexico. Mitchell, along with two New Mexico-based lawyers, filed a lawsuit on Monday relying on an 1873 federal ban on mailing abortion materials — part of the Comstock Act — to attempt to impede New Mexico’s efforts to protect abortion rights today.
I’ll have more on that lawsuit — and the Comstock Act — in the future, but, for our Jonathan Mitchell purposes this morning, the lawyer who has already told two judges in two cases in the past two weeks that he had too much going on to file briefs in those cases on time just added a new case. (In addition to whatever he’s doing at the Texas legislature. Which, almost surely, will lead to litigation that he’ll be involved in.)
Again, in the ACA case, the extension was granted.
Sure, lawyers get busy. Extensions are, at times, needed and generally shouldn’t be opposed and should be granted in the ordinary course.
But, the bottom line here is that Mitchell wants to strike while the 6-3 Supreme Court iron is hot. He is too busy because he wants to move forward as many ideological cases as possible while the justices currently sitting on the bench remain there.
When a person runs an ideological, solo practitioner operation — and particularly when his aims appear almost exclusively to be limiting or obliterating others’ exercise of their constitutional rights and statutory protections — his need to keep asking for extensions is not ordinary. And the lawyers opposing him in court and the courts hearing his cases don’t need to act like it’s normal when it’s not.
The reference to the opposition brief was added and this section was expanded, with the final update at 7:15 p.m.
The "normalcy bias" throughout our institutions (courts, Congress, media) in the face of a rapidly ascendant illiberal movement is not protecting the institutions, it's revealing their vulnerabilities and weaknesses.
To me, Mitchell's litigations are proof of how the right has successfully gamed the system. First, it got its preferred judges on the bench; second, it then has worker bees like Mitchell file lawsuits which will then go in front of those judges, with the obvious expectation that the judges will then rule in their favour. As the Supreme Court has shown with its gutting of the Voting Rights Act and the EPA's regulatory authority (not to mention the Dobbs decision), the plan has worked to a degree that probably even most Federalist Society members would not believe.